FIRST AMENDMENT TO PLAN AND AGREEMENT OF MERGER
THIS FIRST AMENDMENT TO PLAN AND AGREEMENT OF MERGER (the "First
Amendment") made and entered into as of January 27, 1997, among the undersigned
shareholders of NAPTech, INC. (collectively, the "Shareholders"), NAPTech, INC.,
a Delaware corporation (the "Company"), represented herein by Bradford J.
Brower, its duly authorized President, THE SHAW GROUP INC., a Louisiana
corporation (the "Parent"), represented herein by its duly authorized
undersigned officer and SAON, INC., a Louisiana corporation (the "Parent Sub"),
represented herein by its duly authorized undersigned officer, to the Plan and
Agreement of Merger (the "Agreement") entered into as of August 5, 1996, among
the Shareholders, the Company, the Parent and the Parent Sub provides as
follows:
1. Amendment to the Agreement. The Shareholders, the Company, the Parent
and the Parent Sub hereby amend the Agreement as follows:
(a) Section 1.01 of the Agreement is hereby amended by adding thereto the
following definition:
"Additional Scheduled Information" has the meaning specified in the
definition of "Disclosure Schedule".
(b) Section 1.01 of the Agreement is hereby amended by amending the
definition of "Disclosure Schedule" to read in its entirety as follows:
"Disclosure Schedule" means the schedules attached to and delivered to
the Parent and the Parent Sub by the Shareholders and the Company
together with the Agreement (prior to any amendments thereto), as
amended and supplemented through the date of this First Amendment by
written amending and supplementary schedules delivered to the Parent
and the Parent Sub in the form of an amended and restated Disclosure
Schedule, on or prior to the date hereof (the information contained in
such amendments and supplements to the Disclosure Schedule shall be
referred to as "Additional Scheduled Information").
(c) Section 1.01 of the Agreement is hereby amended by amending the
definition of "Minority Shareholders" to read in its entirety as follows:
"Minority Shareholders" means the Shareholders owning 4.91% of the
Shares who are listed on Exhibit 1.01(i).
(d) Section 1.01 of the Agreement is hereby amended by adding thereto the
following definition:
"Special Knowledge" has the meaning specified in Section 5.15 of the
Agreement.
(e) Section 1.01 of the Agreement is hereby amended by adding thereto the
following definition:
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"Parent Knowledge Group" means each of Messrs. James M. Bernhard, Jr., Bret
M. Talbot and T.A. Barfield, Jr.
(f) Section 1.01 of the Agreement is hereby
amended by deleting the therefrom the following definition: "Parent's Due
Diligence Review".
(g) Section 1.01 of the Agreement is hereby amended by adding thereto the
following definition:
"Kennecott" has the meaning specified in Section 3.04(c)(ii) of the
Agreement.
(h) Section 1.01 of the Agreement is hereby amended by adding thereto the
following definition:
"Purchase Order" has the meaning specified in Section 3.04(c)(ii) of the
Agreement.
(i) Section 1.01 of the Agreement is hereby amended by adding thereto the
following definition:
"IRM" has the meaning specified in Section 5.12(h) of the Agreement.
(j) Section 2.05(a)(i) of the Agreement is hereby amended to read in its
entirety as follows:
(i) The Shares, which, after (A) the redemption of all shares
of Common Stock owned by the Minority Shareholders pursuant to Article
VI of this Agreement and (B) the repurchase of all shares of Common
Stock into which the Company Options described in Section 5.12(e) of
this Agreement have been exercised, constitute all of the issued and
outstanding capital stock of the Company immediately prior to the
Effective Time, shall be converted into the right to receive in
exchange therefor 376,977 unregistered shares of the Parent's Common
Stock (the "Merger Consideration"), such number of shares to be (X)
appropriately adjusted for any stock dividends, stock splits or
combination of the outstanding shares of the Parent's Common Stock
declared after the date hereof and prior to the Closing Date and (Y)
reduced by the aggregate number of shares of the Parent's Common Stock
for which Replacement Options shall be exercisable after the Effective
Time at a conversion ratio of 0.0717062 shares of the Parent's Common
Stock for each share of the Common Stock.
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(k) Section 2.05(a)(ii) of the Agreement is hereby amended to read in its
entirety as follows:
(ii) All of the Shares to be converted into the right to
receive in exchange therefor the Merger Consideration, pursuant to this
Section 2.05, shall cease to be outstanding, shall be cancelled and
retired and shall cease to exist, and the Shareholders, which are the
registered holders of the certificates representing the Shares (the
"Company Certificate(s)"), shall thereafter cease to have any rights
with respect to the Shares, except the right to receive, upon the
surrender of the
Company Certificate(s) in accordance with Section 2.05(b), the Merger
Consideration to be allocated among the Shareholders as set forth in
the amended and revised Exhibit 2.05(a)(ii) to this First Amendment.
(l) Section 2.05(c) is hereby amended by adding the phrase "and Section
6.02" at the end thereof.
(m) Section 3.04(c)(ii) of the Agreement is hereby amended by deleting the
final sentence thereof and substituting therefor the following: "Satisfactory
evidence of the execution and registration of the Articles of Organization of
the LLC Subsidiary was provided to Kennecott Utah Copper Corporation
("Kennecott") prior to the commencement of any work being performed by the LLC
Subsidiary relating to Kennecott's purchase order no. BP009.0A-P (the "Purchase
Order").
(n) Section 3.08(a) of the Agreement is hereby amended by adding the phrase
"Except as completely and accurately set forth in Section 3.08(a) of the
Disclosure Schedule" at the beginning of the second sentence thereof.
(o) Section 3.08(b) of the Agreement is hereby amended by adding the phrase
"Except as completely and accurately disclosed in Section 3.08(b) of the
Disclosure Schedule" at the beginning thereof.
(p) The text of Section 3.09(b) is hereby deleted and substituted therefor
is the term "Reserved".
(q) Section 3.09(c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) The Company and the Shareholders represent and warrant that the
consolidated losses of the Company, computed in accordance with GAAP, for the
months of April through August, 1996, shall not exceed $1,500,000.
(r) Section 3.15 of the Agreement is hereby amended by adding the phrase
"Except as completely and accurately disclosed in Section 3.15 of the Disclosure
Schedule" at the beginning of the first sentence thereof.
(s) Section 3.21(a) of the Agreement is hereby amended by deleting the word
"None" at the beginning of that Section and substituting therefor the word
"One".
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(t) Section 3.22(a) of the Agreement is hereby amended to read in its
entirety as follows:
Accounts Receivable and Inventory. (a) All accounts receivable
of the Company, the Subsidiary and the LLC Subsidiary that are
reflected on the Financial Statements or on the accounting records of
the Company, the Subsidiary and the LLC Subsidiary as of the Closing
Date (collectively, the "Accounts Receivable") represent or will
represent valid obligations arising from sales actually made or
services actually performed in the ordinary course of business.
Unless paid prior to the Closing Date, and except as completely and
accurately set forth in Section 3.22(a) of the Disclosure Schedule, the
Accounts Receivable are or will be as of the Closing Date collectible
net of the respective reserves shown on the Financial Statements or on
the accounting records of the Company, the Subsidiary and the LLC
Subsidiary as of the Closing Date, which reserves are adequate. Subject
to such reserves, and except as completely and accurately set forth in
Section 3.22(a) of the Disclosure Schedule, each of the Accounts
Receivable either has been or will be collected in full, without any
set-off, within 90 days after the day on which it first becomes due and
payable. There is no contest, claim or right of set-off, other than
returns in the ordinary course of business, under any contract with any
obligor of an Accounts Receivable relating to the amount or validity of
such Accounts Receivable. As of the Closing Date, the composition of
such Accounts Receivable in terms of aging will not represent a
material adverse change from the aging set forth in the Company GAAP
Statements. Section 3.22(a) of the Disclosure Schedule contains a
complete and accurate list of all Accounts Receivable as of the date of
this First Amendment, which list sets forth the aging of such Accounts
Receivable.
(u) Section 3.24(a) of the Agreement is hereby amended by adding in the
fourth line thereof, the terms "any (1)" between "to," and "plans."
(v) Section 3.30(a) of the Agreement is hereby amended by deleting the word
"Shareholders'" from the third line thereof and substituting therefor the word
"Shareholder's."
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(w) Section 3.30(c) of the Agreement is hereby amended by deleting the
legend in its entirety and substituting therefor the following legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, OR (ii) THIS
CORPORATION RECEIVES AN OPINION SATISFACTORY TO THIS CORPORATION OF LEGAL
COUNSEL FOR THE HOLDER OF THESE SECURITIES ACCEPTABLE TO THIS CORPORATION
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION. THE SECURITIES
EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO (A) THE RESTRICTION SET FORTH
IN SECTION 5.12(i) OF THAT CERTAIN PLAN AND AGREEMENT OF MERGER DATED AS OF
AUGUST 5, 1996, AS AMENDED (THE "PLAN OF MERGER") AMONG THE SHAREHOLDERS OF
NAPTech, INC., NAPTech, INC., SAON, INC. AND THE SHAW GROUP INC. ("SHAW")
AND (B) THE RESTRICTIONS SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 27, 1997 (THE "REGISTRATION AGREEMENT") BETWEEN SHAW
AND THE SHAREHOLDERS OF NAPTech, INC. COPIES OF THE PLAN OF MERGER AND THE
REGISTRATION AGREEMENT ARE FILED WITH THE SECRETARY OF SHAW. BY ACCEPTANCE
OF THIS CERTIFICATE, THE HOLDER HEREOF AGREES TO BE BOUND BY THE TERMS OF
THE PLAN OF MERGER AND THE REGISTRATION AGREEMENT.
(x) Section 4.04 of the Agreement is hereby amended by deleting the term
"Parent's Sub" and substituting therefor the term "Parent Sub's."
(y) Section 5.07(a) of the Agreement is hereby amended by adding a ","
between the word "Design" and the word "Pressure."
(z) Section 5.12(d)(ii) of the Agreement is hereby amended by deleting the
number "0.0772611" and substituting therefor the number "0.0717062".
(aa) Section 5.12(e) of the Agreement is hereby amended to read
in its entirety as follows:
(e) The Company and the Shareholders covenant and agree that,
prior to the Closing Date, any Company Options held by individuals no
longer employed by the Company, the Subsidiary or the LLC Subsidiary as
of the date of this First Amendment, shall have been exercised and the
Common Stock into which such Company Options are exercised purchased by
the Company; provided, however, the Company shall make no payment to
such individuals in connection with the exercise of any such Company
Options.
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(ab) The text of Section 5.12(f) is hereby deleted and
substituted therefore is the term "Reserved".
(ac) Section 5.12(h) is hereby added as an additional
Section of the Agreement as follows:
(h) The Company and the Shareholders covenant and agree to
obtain, on or before the Closing Date, the release by Investment
Resource Management, L.P., and its affiliates ("IRM") of any and all
rights, interests, claims, demands, etc., that IRM now has, may have
had or may hereafter have against the Company, the Subsidiary or the
LLC Subsidiary arising out of, or in any way related to, the Purchase
Order.
(ad) Section 5.12(i) is hereby added as an additional
Section of the Agreement as follows:
(i) Each of the Shareholders covenants and agrees not to sell,
assign, pledge or otherwise transfer the shares of the Parent's Common
Stock received hereunder until the day after the publication by the
Parent of financial results covering at least 30 days of combined
operations of the Parent and the Company within the meaning of SEC
Series Release No. 135, as interpreted by Staff Accounting Bulletins
Nos. 65 and 76.
(ae) Section 5.14 is hereby added as an additional Section
of the Agreement as follows:
SECTION 5.14. Registration Rights. Each of the Shareholders,
other than the Minority Shareholders, hereby acknowledges and agrees
that (it)(he) will only have such registration rights with respect to
the Parent's Common Stock (it)(he) will receive in the Merger as are
set forth in the Registration Rights Agreement attached to this First
Amendment as Exhibit 8.02(s)(1).
(af) Section 5.15 is hereby added as an additional Section
of the Agreement as follows:
SECTION 5.15. Certain Agreements Regarding Termination and
Indemnification. The Parent and the Parent Sub, having reviewed the
Disclosure Schedule, hereby agree that the Parent and the Parent Sub
shall have no right to terminate this Agreement under Article X prior
to the Closing and no right to indemnification for Losses under Article
IX of this Agreement after the Closing as a result of the inaccuracy or
breach of any representation, warranty or covenant by the Company or
the Shareholders contained in this Agreement of which the Parent had
Special Knowledge. For purposes hereof, "Special Knowledge" shall mean
the actual conscious knowledge only of the Parent Knowledge Group on or
before the date of this First Amendment, and which is reflected in
writing in the books, records, files or other documents of the Parent
Knowledge Group; provided, however, that the term Special Knowledge
shall be deemed not to include any actual conscious knowledge of the
Parent Knowledge Group relating to any delay by the LLC Subsidiary in
its performance of the Purchase Order.
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(ag) The text of Section 6.01 of the Agreement is hereby
deleted and substituted therefor is the term "Reserved".
(ah) Section 6.02 is hereby added as an additional Section
of the Agreement as follows:
SECTION 6.02. Redemption by the Company of All Shares of the
Common Stock Held by the Minority Shareholders.
(a) Prior to the Effective Time, the Minority Shareholders
hereby agree to tender for redemption, and the Company hereby agrees to
redeem, all shares of Common Stock owned by them.
(b) Each of the Minority Shareholders hereby (i) acknowledges
and agrees, as of the date on which the shares of Common Stock are
redeemed by the Company, that (he)(she)(it) shall no longer have any
rights under this Agreement or otherwise as a shareholder of the
Company and (ii) consents to the Merger and all transactions
contemplated by the terms of this Agreement.
(c) Notwithstanding any other provision of this Agreement to
the contrary, neither the payment by the Company of amounts to the
Minority Shareholders to redeem their shares of Common Stock in
accordance with this Section 6.02 nor the incurrence by the Company of
any indebtedness to pay such amounts shall constitute a breach of any
provision of this Agreement.
(d) The Shareholders, other than the Minority Shareholders,
hereby consent to the redemption by the Company of the Shares owned by
the Minority Shareholders pursuant to this Section 6.02 and hereby
acknowledge that the consideration received by the Minority
Shareholders for their Shares (i) may be different than the
consideration received by such Shareholders upon consummation of the
transactions contemplated by this Agreement; and (ii) may have a
greater value than the value ultimately realized by such Shareholders
from the consideration received upon consummation of the transactions
contemplated by this Agreement.
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(ai) Section 7.01(a)(ii) of the Agreement is hereby
amended by deleting "Section 7.01(a)" and substituting therefor "Section
7.01(a)(i)."
(aj) Section 7.01(a)(ii)(A) of the Agreement is hereby
amended to read in its entirety as follows:
(A) Each of the Shareholders hereby represents and warrants,
as of the date hereof and as of the Closing Date, and covenants to the
Parent and to each of the other Shareholders as follows:
(ak) Section 7.01(a)(ii)(A)(2) is hereby amended to read
in its entirety as follows:
(2) None of the Shareholders has any plan or intention, for a
period of two years following the Effective Time, to sell, exchange or
otherwise dispose of a number of shares of the Parent's Common Stock
received in the Merger that would reduce the Shareholders' ownership of
shares of the Parent's Common Stock to a number of shares having a
value, as of the Closing Date, of less than 50% of the value of all of
the formerly outstanding stock of the Company as of the same date.
(al) Section 7.11(e) of the Agreement is hereby amended to
read in its entirety as follows:
(e) Notwithstanding any provision of this Agreement to the
contrary, the obligations of the Shareholders to indemnify and hold
harmless the Parent, the Company, the Subsidiary and the LLC Subsidiary
pursuant to this Article VII, and the representations and warranties
contained in Section 7.01, shall terminate no later than the first
anniversary of the Effective Time or such earlier date as the Parent
may agree.
(am) Section 8.01(h) of the Agreement is hereby amended by
deleting the term "Exhibit 8.01(h)(1)" and substituting therefor the term
"Exhibit 8.02(s)(1)".
(an) Section 8.02(a) of the Agreement is hereby amended by
adding the following at the end of the first sentence thereof: "in each case
after giving effect to the Additional Scheduled Information."
(ao) Section 8.02(b) of the Agreement is hereby amended
by deleting the term "Reserved" and substituting therefor the following:
(b) Redemption; Certain Company Options. Each of (i) the
redemption described in Article VI hereof and (ii) the repurchase by
the Company of all of the shares of Common Stock into which the Company
Options described in Section 5.12(e) have been exercised shall have
been completed.
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(ap) The text of Section 8.02(e) of the Agreement is
hereby deleted and substituted therefor is the term "Reserved".
(aq) Section 8.02(l) of the Agreement is hereby amended by
deleting the phrase "escrow agreement" and substituting therefor the phrase
"escrow agent".
(ar) Section 8.02(q) of the Agreement is hereby amended to
read in its entirety as follows:
(q) Review of the Business. The Parent's review of the
Business subsequent to the date of this First Amendment, including
without limitation (i) a review of all documents, records and other
information which the Parent in its opinion shall deem relevant and
(ii) visits to or inspections of any location where the Business is
conducted, shall not have revealed any material adverse information
either (i) not reflected in the Disclosure Schedule or (ii) of which
the Parent did not have Special Knowledge, which material adverse
information, individually or in the aggregate, gives rise to a Material
Adverse Effect.
(as) Section 8.02(t) is hereby amended by deleting the date
"August 11, 1996", and substituting therefor the phrase "two Business Days prior
to the Closing Date".
(at) The text of Section 8.02(v) of the Agreement is
hereby deleted and substituted therefor is the term "Reserved".
(au) Section 8.02(w) of the Agreement is hereby amended (i) by
deleting the number "127,000" and substituting therefor the number "83,333" and
(ii) by deleting the number "12,700" and subtituting therefor the number
"8,333".
(av) Section 8.02(x) of the Agreement is hereby amended to
read in its entirety as follows:
(x) Non-Competition Agreements. Messrs. Corgiat and Bennett
shall have entered into non-competition agreements in favor of the
Parent, the Company and their affiliates providing for a term of no
less than two (2) years, after the date of the termination of their
respective employments, the term of each such agreement to be
satisfactory to the Parent and providing for periodic payments to
Messrs. Corgiat and Bennett in accordance with the schedule provided
to the Parent by the Company on or prior to August 7, 1996.
(aw) Section 9.01(a) of the Agreement is hereby amended to
read in its entirety as follows:
"SECTION 9.01. Survival of Representations, Warranties and
Covenants. (a) The representations and warranties of the Shareholders
contained in this Agreement, the Exhibits to this Agreement and the
Disclosure Schedule and any certificate, statement or report or other
document delivered pursuant to this Agreement (collectively, the
"Acquisition Documents"), shall survive the Closing until the first
anniversary of the Effective Time or such earlier date as the Parent
may agree (or as otherwise provided in Article VII). All covenants of
the Shareholders shall survive the Closing until the first anniversary
of the Effective Time, or as otherwise specifically set forth herein.
Neither the period of survival nor the liability of the Shareholders or
the Parent with respect to the Shareholders' or the Parent's
representations and warranties shall be reduced by any investigation
made at any time by or on behalf of the Parent or the Shareholders, as
the case may be. If written notice of a claim has been properly given
in the manner required by Section 9.02(d) prior to the expiration of
the applicable representations and warranties, then the relevant
representations and warranties shall survive as to such claim until
such claim has been finally resolved. No representation, warranty or
covenant of the Company contained in the Acquisition Documents shall
survive the Closing."
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(ax) Section 9.01(b) of the Agreement is hereby amended to
read in its entirety as follows:
"(b) The representations and warranties of the Parent
contained in this Agreement, the Exhibits to this Agreement and the
Disclosure Schedule and any certificate, statement or report or other
document delivered pursuant to this Agreement (collectively, the
"Acquisition Documents"), shall survive the Closing until the first
anniversary of the Effective Time (or as otherwise stated in Article
VII). All covenants of the Parent shall survive the Closing until the
first anniversary of the Effective Time or as otherwise specifically
set forth herein. If written notice of a claim has been properly given
in the manner required by Section 9.02(d) prior to the expiration of
the applicable representations and warranties, then the relevant
representations and warranties shall survive as to such claim until
such claim has been finally resolved."
(ay) Section 9.02(a)(iii) is hereby amended by deleting
the term "and" at the end thereof.
(az) Section 9.02(a)(v) is hereby amended by deleting the
"." at the end thereof and substituting therefor the following: "; and".
(ba) Section 9.02(a)(vi) is hereby added as an additional
Section of the Agreement as follows:
(vi) without regard to, and notwithstanding any item set forth
on the Disclosure Schedule, and without regard to any Special
Knowledge, liabilities of the Company, the Subsidiary or the LLC
Subsidiary, arising out of, or in any way relating to, any delay,
existing at or prior to the Closing, in the performance of the Purchase
Order by the LLC Subsidiary; and the foregoing covenant shall survive
indefinitely after the Closing.
(bb) Section 9.03(a) of the Agreement is hereby amended by
deleting the number "$10,000,000" and substituting therefor the number
"$7,500,000".
(bc) Section 9.03(b) of the Agreement is hereby amended to
read in its entirety as follows:
(b) The limitations set forth in Section 9.03(a) shall not
apply with respect to any Losses suffered or incurred by the Parent in
connection with (i) the representations and warranties contained in
Section 3.03, 3.09(a), 3.09(c) and
3.24, (ii) the representations and warranties contained in Article VII,
(iii) any sums paid by the Subsidiary to acquire the membership
interest of the LLC Subsidiary not owned by the Company on the date
hereof, and (iv) any sums in excess of $300,000 paid by the Company,
the Subsidiary or the LLC Subsidiary to obtain the release of IRM as
set forth in Section 5.12(h), and the Shareholders shall fully
indemnify the Parent for such Losses from the first dollar of such
Losses to the full extent of such Losses.
(bd) Section 9.03(e) is hereby added as an additional
Section of the Agreement as follows:
(e) The $300,000 limitation set forth in Section 9.03(a) shall
not apply with respect to any Losses suffered or incurred by the Parent
in connection with the liabilities described in Section 9.02(a)(vi) of
the Agreement, and the Shareholders shall fully indemnify the Parent
for any such Losses from the first dollar of such Losses; provided,
however, that the indemnification obligation of the Shareholders for
Losses related to such liabilities shall be limited to the shares of
the Parent's Common Stock deposited in escrow pursuant to Section 9.04
of this Agreement.
(be) Section 9.03(f) is hereby added as an additional
Section of this Agreement as follows:
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(f) Notwithstanding any provision of this Agreement to the
contrary, the amount of any indemnification obligation of the Parent
under this Article IX shall be paid by the Parent solely in shares of
the Parent's Common Stock, which for such purposes shall be valued at
$24.00 per share.
(bf) Section 9.04 of the Agreement is hereby amended to
read in its entirety as follows:
SECTION 9.04. Security for Shareholders' Agreement to
Indemnify. To secure the Shareholders' obligations to indemnify the
Parent hereunder, at the Closing, the Shareholders shall deposit 10% of
the Merger Consideration received by them at the Closing with City
National Bank of Baton Rouge (or such other financial institution
acceptable to the Parent), as escrow agent, to be held and released in
accordance with the terms of the Escrow Agreement. Such escrowed shares
and right of set-off, however, shall not be the Parent's exclusive
remedies hereunder, and nothing herein shall preclude the assertion by
the Parent of any other right or remedies in respect of the foregoing
agreements on indemnity.
(bg) Section 10.01(c)of the Agreement is hereby amended to
read in its entirety as follows:
(c) by either the Shareholders or the Parent if the Effective
Time shall not have occurred by January 28, 1997; provided, however,
that if (A) if the provisions of Section 8.01(g) have not been
satisfied by January 28, 1997, and the Parent is diligently seeking to
satisfy such condition, or (B) if the provisions of Section 8.02(g)
have not been satisfied by January 28, 1997 and the Shareholders are
diligently seeking to satisfy such condition, then, in each case
(subject to the proviso below) the obligations of the parties to
proceed toward the Closing shall be extended until January 31, 1997;
and provided further, that the right to terminate this Agreement under
this Section 10.01(c) shall not be available to any party whose failure
to fulfill any obligation under this Agreement shall have been the
cause of, or shall have resulted in, the failure of the Effective Time
to occur on or prior to such date; or
(bh) Section 10.01(f) is hereby added as an additional
Section of the Agreement as follows:
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(f) by the Parent if the First Amendment to the Agreement
shall not have been executed (i) by each and every one of the
Shareholders who are not Minority Shareholders and counterpart
signature pages thereto so executed delivered to the Parent by January
17, 1997, and (ii) by each and every one of the Minority Shareholders
and counterparts of the signature pages thereto so executed delivered
to the Parent by January 17, 1997.
(bi) Section 10.02(b) of the Agreement is hereby amended by
deleting the following parenthetical "(as supported by itemized invoices
delivered to Shareholder)" and substituting therefor the following: "(as
supported by itemized invoices delivered to the Shareholder Representative)".
(bj) Section 11.01 of the Agreement is hereby amended to
read in its entirety as follows:
SECTION 11.01. Solidary Obligation of the Shareholders. The
obligations of the Shareholders under this Agreement shall be solidary;
provided the maximum liability of each such Shareholder shall not
exceed a percentage of all amounts owing by the Shareholders hereunder
equal to 125% of a fraction of which the numerator is the number of
Shares owned by such Shareholder immediately prior to the Closing Date
(and after giving effect to (i) the redemption described in Section
6.02 of this Agreement and (ii) the repurchase of the shares of Common
Stock as described in Section 5.12(e) of this Agreement) and the
denominator is the total number of Shares owned by all the Shareholders
immediately prior to the Closing Date (and after giving effect to the
redemption described in Section 6.02 of this Agreement). Following the
Closing, the Shareholders shall have no right of or claim to
contribution or indemnity against the Company with respect to any
breach, violation, default, or alleged breach, violation or default of
any representation, warranty or covenant of the Company in any of the
Acquisition Documents.
(bk) The final paragraph of the Agreement is hereby amended by
adding "," after the phrase "the Company" and before the phrase "the Parent".
(bl) The Agreement is hereby amended by deleting each
reference therein to "Freeport Properties, L.L.C." and substituting therefor
"Freeport Properties, L.C.".
(bm) The Agreement is hereby amended by deleting each
reference therein to the phrase "Nasdaq Stock Market" and substituting therefor
the phrase "New York Stock Exchange."
(bn) The "Table of Contents - Exhibits" to the Agreement is
hereby amended by deleting "Exhibit 8.01(s)(1) Registration Rights Agreement"
and substituting therefor "Exhibit 8.02(s)(1) Registration Rights Agreement".
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2. Capitalized Terms. Unless otherwise expressly defined herein,
capitalized terms used in this First Amendment shall have the meanings ascribed
to such terms in the Agreement.
3. Amendment of Exhibit 1.01(i). The Shareholders, the Company, the
Parent and the Parent Sub hereby revise and amend Exhibit 1.01(i) to the
Agreement in its entirety as set forth in the revised and amended version
thereof attached to this First Amendment as Exhibit 1.01(i), which revised and
amended version supersedes and replaces the entire version in its entirety.
4. Amendment of Exhibit 2.05(a)(ii). The Shareholders, the Company, the
Parent and the Parent Sub hereby revise and amend Exhibit 2.05(a)(ii) to the
Agreement in its entirety as set forth in the revised and amended version
thereof attached to this First Amendment as Exhibit 2.05(a)(ii), which revised
and amended version supersedes and replaces the entire version in its entirety.
5. Amendment of the Registration Rights Agreement.The Shareholders, the
Company, the Parent and the Parent Sub hereby revise and amend the Registration
Rights Agreement attached to the Agreement as Exhibit 8.02(s)(1) in its entirety
as set forth in the revised and amended Registration Rights Agreement attached
to this First Amendment as Exhibit 8.02(s)(1), which revised and amended version
supersedes and replaces the entire version in its entirety.
6. Amendment to Representation Letter by the Shareholders. The
Shareholders, the Company, the Parent and the Parent Sub hereby revise and amend
the Representation Letter by the Shareholders attached to the Agreement as
Exhibit 8.02(s)(2) in its entirety as set forth in the revised and amended
Representation Letter by the Shareholders attached to this First Amendment as
Exhibit 8.02(s)(2), which revised and amended version supersedes and replaces
the entire version in its entirety.
7. Amendment to Escrow Agreement. The Shareholders, the Company, the
Parent and the Parent Sub hereby revise and amend the Escrow Agreement attached
to the Agreement as Exhibit 8.02(l) in its entirety as set forth in the revised
and amended Escrow Agreement attached to this First Amendment as Exhibit
8.02(l), which revised and amended version supersedes and replaces the entire
version in its entirety.
8. Amendments to Legal Opinions. The Shareholders, the Company, the
Parent and the Parent Sub hereby revise and amend the Legal Opinion of Parent's
Counsel and the Legal Opinion of Company's Counsel attached to the Agreement as
Exhibits 8.01(f) and 8.02(f), respectively, in their entirety as set forth in
the revised and amended Legal Opinion of Parent's Counsel and Legal Opinion of
Company's Counsel attached to this First Amendment as Exhibit 8.01(f) and
Exhibit 8.02(f), respectively, which revised and amended versions supersede and
replace the entire versions in their entirety.
-13-
<PAGE>
9. Amendment to the Table of Contents. The Shareholders, the Company,
the Parent and the Parent Sub hereby amend the Table of Contents to the
Agreement to reflect the amendments to the Agreement set forth in Section 1 of
this First Amendment.
10. Waiver by the Shareholders and the Company. Pursuant to the
provisions of Section 10.03 of the Agreement, the Company and the Shareholders
hereby waive any and all breaches by the Parent or the Parent Sub of any
representation, warranty or covenant contained in the Agreement, whether known
or unknown, existing as of the date of this First Amendment.
11. Acknowledgement and Confirmation of the Agreement by the
Shareholders. By executing below, each of the Shareholders, in the capacities
indicated below, acknowledges, confirms and agrees to be bound by the terms of
the Agreement as amended by this First Amendment, notwithstanding the fact that
the Agreement may not have been signed by all of the persons and in the manner
set forth below.
12. Counterparts. This First Amendment may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
when taken together shall constitute one and the same agreement.
13. No Other Amendments. As amended by this First Amendment, the
Agreement shall remain in full force and effect in accordance with its terms.
-14-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed in multiple originals, all as of the date and year first above
written.
COMPANY:
NAPTech, INC.
By:_______________________________
Name: Bradford J. Brower
Title: President
PARENT:
THE SHAW GROUP INC.
By:________________________________
Name: Bret M. Talbot
Title: Vice President and
Chief Financial Officer
PARENT SUB:
SAON, INC.
By:________________________________
Name: Bret M. Talbot
Title: President
Members of the Board of Directors of NAPTech, Inc.
- ------------------- -----------------------
Bradford J. Brower Donald L. Robertson
- ------------------- -----------------------
M. Russell Ballard Raymond Furgeson
- -------------------
Robert A. Schroeder
Members of the Board of Directors of SAON, Inc.
- ------------------- ------------------------
Bret M. Talbot T.A. Barfield, Jr.
-15-
<PAGE>
SHAREHOLDERS OF SAON, Inc.
THE SHAW GROUP INC.
By:
Name: J. M. Bernhard, Jr.
Title: Chairman of the Board, President
and Chief Executive Officer
SHAREHOLDERS OF NAPTech, Inc.:
BRADFORD J. BROWER (30.64%)
- ---------------------------
Bradford J. Brower
ROBERTSON FAMILY TRUST (9.93%)
By: __________________________
Don L. Robertson, Trustee
By: __________________________
Mary L. Robertson, Trustee
ROBERT A. SCHROEDER (10.34%)
- ----------------------------
Robert A. Schroeder
NUPETCO ASSOCIATES, A UTAH
LIMITED PARTNERSHIP (9.76%)
By: ________________________________
Neuman C. Petty, General Partner
GES INVESTMENTS, L.C. (9.27%)
By: ________________________________
Gary E. Stevenson, Member
-16-
<PAGE>
SRW INVESTMENTS, L.C. (9.27%)
By: ______________________________
Scott R. Waterson, Member
BALLARD INVESTMENT COMPANY (7.81%)
By: ________________________________
M. Russell Ballard, Jr., General
Partner
RICHARD I. & JUDITH A. WINWOOD
(5.15%)
_______________________________
Richard I. Winwood
_______________________________
Judith A. Winwood
RICHARD WINWOOD
(1.22%)
______________________________
Richard Winwood
PRUDENTIAL SECURITIES C/F DON L. ROBERTSON
IRA DTD 5/12/92 ACCT # EO-R41739 (.20%)
By: _________________________________
______________________________________
Donald L. Robertson, Beneficiary
KIM S. MEDEIROS (.41%)
_______________________________________
Kim S. Medeiros
-17-
<PAGE>
KIM S. MEDEIROS, CUSTODIAN FOR
ANDREW TAYLOR MEDEIROS (.52%)
______________________________
Kim S. Medeiros
WENDY L. ROBERTSON (.52%)
______________________________
Wendy L. Robertson
GREG R. COWLEY (.98%)
______________________________
Greg R. Cowley
JACK BOLLERUD (.24%)
______________________________
Jack Bollerud
BONIN/MCCHESNEY REVOCABLE INTER
VIVOS TRUST (.05%)
By: __________________________
Dr. Adelyn Bonin, Trustee
FRANCIS AND MADLIN ELLYIN,
HUSBAND & WIFE AS JOINT
TENANTS (.10%)
________________________________
Francis Ellyin
________________________________
Madlin Ellyin
-18-
<PAGE>
THOMAS AND CATHERINE YOUNG,
HUSBAND & WIFE AS JOINT
TENANTS (.20%)
- ------------------------------
Thomas Young
- ------------------------------
Catherine Young
ROGER & JANE FISHER, HUSBAND
& WIFE AS JOINT TENANTS (.10%)
- ------------------------------
Roger Fisher
- ------------------------------
Jane Fisher
ROBERT W. & JANET M. GERBODE
FAMILY TRUST (.49%)
By: -------------------------
Robert W. Gerbode, Trustee
LINCOLN TRUST COMPANY CUSTODIAN FBO HAROLD
J. STEWART #608296682 (.15%)
By: ____________________________
________________________________
Harold J. Stewart, Beneficiary
-19-
<PAGE>
LINCOLN TRUST COMPANY CUSTODIAN FBO KAREN
S. NORMAN #60831919 (.15%)
By:______________________________________
____________________________
Karen S. Norman, Beneficiary
LINCOLN TRUST COMPANY CUSTODIAN FBO HARRY
L. NORMAN #60826765 (.10%)
By:_________________________
- ----------------------------
Harry L. Norman, Beneficiary
ERIC D. MENKE & SANDRA M.
SMITH (.10%)
_____________________________
Eric Menke
_____________________________
Sandra M. Smith
ALBERT AND ROSALIE HEDGES,
HUSBAND & WIFE AS JOINT
TENANTS (.15%)
- -----------------------------
Albert Hedges
- -----------------------------
Rosalie Hedges
-20-
<PAGE>
LINCOLN TRUST COMPANY CUSTODIAN FBO
MICHAEL G DENICOLA #60776792 (.24%)
By:_______________________________
__________________________________
Michael G. DeNicola, Beneficiary
SUE OLSON (.10%)
- ----------------------------------
Sue Olson
THE ANOOSH J. GULIAN 1992
LIVING TRUST (.20%)
By: -----------------------------
Anoosh J. Gulian, Trustee
PHYLLIS M. SAMMON (.10%)
- ----------------------------------
Phyllis M. Sammon
SLOUGH FAMILY TRUST (.10%)
By: ----------------------------
Sharon L. Slough, Trustee
-21-
<PAGE>
THEODORE KASPEROVICH AND
KATHLEEN KASPEROVICH,
J.T.W.R.O.S. (.10%)
- ----------------------------
Theodore Kasperovich
- ----------------------------
Kathleen Kasperovich
DOUGLAS W. LEHMAN AND
DEBORAH A. LEHMAN,
J.T.W.R.O.S. (.10%)
- -----------------------------
Douglas W. Lehman
- -----------------------------
Deborah A. Lehman
BAP (.59%)
By:--------------------------
DIANE M. WIACEK AND LAWRENCE M.
WIACEK, JOINT TENANTS WITH RIGHTS
OF SURVIVORSHIP (.10%)
- ------------------------------
Diane M. Wiacek
- ------------------------------
Lawrence M. Wiacek
BB & GC ENTERPRISES, L.L.C. (.52%)
By: __________________________
Greg R. Cowley, Manager
-22-
<PAGE>
Exhibits:
Exhibit 1.01(i) - List of Minority Shareholders
Exhibit 2.05(a)(ii) - Allocation of Merger Consideration
Exhibit 8.01(f) - Legal Opinion of Parent's Counsel
Exhibit 8.02(f) - Legal Opinion of Company's Counsel
Exhibit 8.02(l) - Escrow Agreement
Exhibit 8.02(s)(1) - Registration Rights Agreement
Exhibit 8.02(s)(2) - Representation Letter by the Shareholders
Amended and Restated Disclosure Schedule:
3.02 Organization, Authority and Qualification of the Company
3.03(b) Capital Stock of the Company; Ownership of Shares
3.04 Subsidiaries
3.07 No Conflict
3.08(a) Company GAAP Statements, Company Interim GAAP Statements and
Financial Statements
3.08(b) Books of Account and Financial Records
3.08(c) LLC Liabilities
3.10 Liabilities or Capital Commitments
3.12 Conduct in the Ordinary Course; Absence of Certain Changes;
Events and Conditions
3.13 Litigation
3.14 Certain Interests
3.15 Compliance with Laws
3.16 Environmental and Other Permits and Licenses; Related Matters
3.17 Material Contracts
3.18 Intellectual Property
3.19 Owned Real Property; Leased Real Property
3.20 Tangible Personal Property
3.21 Assets
3.22 Accounts Receivable and Inventory
3.23 Customers
3.24(a) Employee Benefit Matters
3.24(b) Plans with Severance Benefits
3.24(c) Plan Compliance
3.24(d) Qualification of Certain Plans
3.24(e) Absence of Certain Liabilities and Events
3.24(g) Certain Employee Benefit Assets
3.25 Labor Matters
3.26 Key Employees
3.27(a) Risk Management
3.27(c) All Risks
3.27(e) Insurance Coverage
3.28 Accounts; Lockboxes; Safe Deposit Boxes; Powers of Attorney
5.09 Indemnities and Obligations Not Released
5.13 Inter-Company Agreements Not Terminated
7.01 Representations and Warranties
8.01 Personal Guarantees
8.01(l) Certain Obligations to be Paid by the Company Pre-Closing
-23-
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